An executive order is not the solution

President Obama is expected to act in the next few days to grant legal status to millions of illegal immigrants, fulfilling a promise he made before the election. Giving legal status to people who have lived and worked in the United States for a decade or more, paid taxes, kept out of trouble, contributed to their local economies, and raised children who are American citizens is the right and moral thing to do. But the right thing to do is not necessarily legal when it means bypassing Congress—and President Obama’s decision has as much to do with politics as it does morality.
A majority of Americans favor legalizing undocumented immigrants who fit the profile described above, including a majority of Republicans in most polls taken on the issue over the last decade. Nonetheless, Congressional efforts to pass legislation to accomplish this end have been stymied by intense lobbying from anti-immigrant groups, with help from ratings-driven conservative media who rile up segments of the Republican base to make what is a non-issue for most voters into a major issue in some recent campaigns. It is a sad state of affairs, but it is one that cannot be fixed with a stroke of the president’s pen.
In 1986, Congress passed the Immigration and Reform Act (IRCA), which granted amnesty to some 3 million illegal immigrants present in the U.S. as of January 1, 1982. The law also created a bureaucratic nightmare of government overreach in the hopes of stemming future flows of illegal immigration.
Instead of adopting sensible, market-based measures to increase the number of persons admitted legally to the U.S. to create legal avenues for needed workers to migrate here, the law penalized employers for hiring undocumented workers, which did nothing to slow illegal migration. Worse, it made all employers—including individuals who hire someone to clean their home, babysit their children, or cut their grass—into quasi-enforcement agents who must verify legal status by inspecting birth certificates, drivers’ licenses, Social Security cards and other documents and maintain copies of the documents for years.
It’s a terrible law—and one that is routinely flouted by ordinary Americans and creates intrusive federal interference in the employment process for businesses. Nonetheless, it remains the law of the land. The president may drag his feet on enforcing its provisions—though President Obama’s record on deporting more illegal immigrants than any president in U.S. history suggests he’s not as lax as his GOP critics suggest—but he cannot willy-nilly rewrite it on his own.
The president knows this. He’s stated so numerous times. “If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws,” he said in 2013. So why is he ignoring his own understanding of his constitutional powers now?
My bet is that he hopes to goad Republicans into the kind of nasty rhetoric that dominated the Republican primaries in 2012 in hopes they’ll once again alienate Hispanic voters. The GOP did much better than expected with Hispanics who voted in the midterm elections, especially in state races. Texas governor-elect Greg Abbott won 43 percent of the Hispanic vote and Kansas Gov. Sam Brownback won 47 percent. If Republicans can do this well in 2016, the White House will be winnable. But if they start talking about deportation, even self-deportation as Mitt Romney did, they’re path to victory is much narrower.
The status quo—11 million persons living in the shadows—is inhumane, unproductive, and undermines the rule of law. Something must be done. Those who oppose legalization ought to be put to the test. Do they want to see 11 million men, women and children rounded up, put in detention and sent “home”?
Some might say yes, until they realized the devastating toll it would take in their own communities: houses and apartments suddenly vacant; cars and other consumer goods unsold; crops rotting in the fields; a hike in the cost of meat, fruit, vegetables and just about everything else; mothers who had to leave their jobs for want of someone to care for their children. The effect of eliminating 11 million people from our economy would be the equivalent of wiping out all of New York and Los Angeles.
But if the president is cynical, the Republicans have hardly shown themselves to be profiles in courage. The American people deserve better from both parties. The president shouldn’t go it alone—but the Republicans must step up and do the right thing by enacting legislation.